The sun. [volume] (Morris, Stevens County, Minn.) 1882-1895, 1887-12-15

District Court, W;lkin County Andrew
Brandrup VS.. c. Adltman Co.
LYMAN B. Everdell for defendant.
Ezra G. Valentine for defendandant.
Motion to strike out demurrer to complaint
as frivolous overruled.
MEMORANDUM.
The plaintiff moves to strike out as frivolous
the defendants demurrer to his complaint.
The action is to recover damages caused by
the breach of warranty alleged to have been
made on the sale CT harvesting machine.
The material portions of the complaint are as
fellows:
THAT at Breckinridge, in said county, on
the 4th day of August 1857, the defendant
sold to one Rudolph Siggler certain har ;
dollars. That at the time of said sale the de-
PENDANT ex pressly warranted said machine to
Ike constructed of good material and capable
of doing good work in the cutting and bind
ing Of grain. That said harvesting machine
was not 80 constructed, but on the contrary,
10y reason Of improper construction, and Of
defective and i'm proper material used therein,
it would not and could not bemade to do good
work in the cutting and binding of grain, and
was of no value whatever"
The foregoing is all there is of the COM
plant except an allegation that before the
commencement of the action the cause of &C
ton the cause Of action was assigned to the
plaintiff, To this complaint the defendant
iuterposed general demur er, and the ques
ton to determine is whether this demurrer is
frivolous frivolous demurrer is one
(which without argument and at first glance
must lie pronounced bad. The grounds
thereof should lie CLEARLY USTEHABLE; and if
the matter is fairly susceptible of argument it
should not be treated as frivolous demu, er ;"
Van Sauntvoords pleadings TIT. It is one
which indicates bad faith in the pleader.
Farmers Bank vs. Sawyer, Z Wis. arg. Does
rules? think not The plaintiffs right of
recovery is based on the alleged warranty and
q breach til, reof The demurrer raises he
question W he ther the facts stated in the CON-
plant are sufficient to warrant a recovery BY
abe plaintiff. The complaint may be sufficient
ia not necessarily frivolous. The plaintiff
alleges an exprs IS warranty, but he does not
allege that in purchasing the machine he was
induced thereby, or that lie relied thereon.
VIII ther it is necessary to al eye either OF these
facts it Is unnecessary to decide: it is su fl lent
10 say that the absence Of both is sufficient to
do away with the charge that the demurrer is
frivolous.
Judge Dickinson says. "a warranty for
the breach of the conditions of hicl. an &C.
"tion ex coutractu for damages can lie MAIN
"tained mu be q legal contract and not
"mere naked agreement. 1t must be o repre-
"sentatinn of something az tact, UPON WHICH
'.rHE PURCHASER RELIES, and by which he is
induced, to some extent to make the mr.
chase, or is influenced in respect to the price
''or consideration.
Mccormick v. Kelly. % Mimi. 1876, and
cases there cited, to wit:
Mfg. Society v. Lawrence. 4 Cow. 40.
Lindsay v. Lindsay, 81 Miss, 49,
Blythe Y. Sp AXE, % Tex. 429.
Adams v. Johnson, Is Ill. AS.
Ii q vendor, at the time OF the sale. affrms
fact, as to the essential qualities of his goods
in clear and definite language, and the pur-
cha -er buys on the faith Of such affirmation.
il is an express warranty.
He shaw v. Robins, 20 Mass ;, SO.
There are numerous authorities holding it
necessary to allegc q reliance on the warranty
in order to entitle party to recover for a
breach thereof Gee generally on the subject:
Torkelson v. Jorgeilson, % Mimi. 1888.
Zimmerman v. Morrow, q Mimi, 3b7.
l'aln D.,'i.ttle, 10 Wis. 2O6.
Austin v. NickcIs IN, 81 Wis.,, $40.
Ward Y. Bowen, 81 MINI. 335
G. L. RROwy,
District Ju lge